Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 5) [2012] FCA 191

Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal (No 5) [2012] FCA 191

A self-executing dismissal order for non-compliance with a security for costs order is not appropriate; instead, the Court grants leave to apply for further or other relief in the event of non-compliance, with the cross-claim stayed until security is provided.

Parties
Applicant/seventh Cross Respondent: Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed); First Respondent/second Cross Claimant: Pankaj Oswal; Second Respondent/first Cross Claimant: Radhika Oswal; Third Respondent: Comical Ali Militant Vegetarian Pty Ltd; Fourth Respondent: Oswal Industrial Pty Ltd; First Cross Respondent: Australia and New Zealand Banking Group Limited; Second Cross Respondent: ANZ Fiduciary Services Pty Ltd; Third Cross Respondent: Ian Menzies Carson; Fourth Cross Respondent: David Laurence McEvoy; Fifth Cross Respondent: Simon Guy Theobald; Sixth Cross Respondent: Burrup Holdings Pty Limited
Jurisdiction
Australia
Judgment Date
06 March 2012
Procedural Posture
Security for Costs Application / Decision on Application for Security for Costs and Related Orders
Outcome
Security for costs ordered, cross-claim stayed until security provided, leave granted to apply for further relief on non-compliance, application for self-executing dismissal rejected, costs awarded to applicant
Legal Topics
Security for Costs, Self Executing Orders, Stay of Proceedings, Costs
Civil Procedure Security for Costs Self Executing Orders Stay of Proceedings Costs

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Parties

Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed)

Applicant/seventh Cross Respondent

Pankaj Oswal

First Respondent/second Cross Claimant

Radhika Oswal

Second Respondent/first Cross Claimant

Comical Ali Militant Vegetarian Pty Ltd

Third Respondent

Oswal Industrial Pty Ltd

Fourth Respondent

Australia and New Zealand Banking Group Limited

First Cross Respondent

ANZ Fiduciary Services Pty Ltd

Second Cross Respondent

Ian Menzies Carson

Third Cross Respondent

David Laurence McEvoy

Fourth Cross Respondent

Simon Guy Theobald

Fifth Cross Respondent

Burrup Holdings Pty Limited

Sixth Cross Respondent

Procedural Posture

Security for Costs Application / Decision on Application for Security for Costs and Related Orders

Legal Issues

  1. 1 Whether a self-executing dismissal order should be made for non-compliance with security for costs order
  2. 2 Whether a proceeding should be stayed or leave to apply for further relief should be granted in the event of non-compliance
  3. 3 Appropriate mechanism for enforcement of security for costs

Ratio Decidendi

A self-executing dismissal order for non-compliance with a security for costs order is not appropriate; instead, the Court grants leave to apply for further or other relief in the event of non-compliance, with the cross-claim stayed until security is provided.

Court Disposition

Security for costs ordered, cross-claim stayed until security provided, leave granted to apply for further relief on non-compliance, application for self-executing dismissal rejected, costs awarded to applicant

Orders

  • The first respondent/second cross-claimant provide security for costs for the applicant/seventh cross-respondent in respect of the cross-claim up until the date he files an affidavit of discovery in the amount of $100,000 to be held in an interest bearing trust account in joint names of solicitors.
  • The first respondent/second cross-claimant's cross-claim be stayed until security is given in accordance with order 1.